In 1932, even in connection with a boundary line modification between Panama and the Canal Zone, an Act of Congress was sought and obtained, H.R. 7119, 72nd Cong., 1st Sess., 72 Cong. Rec. 4652-4657 (1932).

The 1942 transfer of sewers, waterworks systems and railroad lots required legislation. Act of May 3, 1943, ch. 92, 57 Stat. 74.

Again, in the 1955 treaty providing for the transfer of real property to Panama, it was stated:

"The United States of America agrees that, subject to the enactment of legislation by the Congress, there shall be conveyed to the Republic of Panama

and Congress did in fact pass such legislation (Act of Aug. 3, 1957, Pub. Law No. 85-223, 71 Stat. 509).

Furthermore, the State Department acknowledged necessity for prior “implementing" legislation in the 1955 hearings on the treaty of Mutual Understanding and Cooperation with the Republic of Panama before the Senate Committee on Foreign Relations, 84th Cong., 1st Sess. at pp. 60-61 (1955).

The President's power under the Panama Canal Zone Code 1934, Title 2, § 3 (8/24/1912, Ch. 390, § 1, 37 Stat. 560) is expressly defined and limited.

The President may by treaty with the Republic of Panama "acquire additional land" or "exchange land." No authority was granted by Congress to the President to dispose of land in the Zone and prior practice in connection with property disposals in the Canal Zone clearly indicate that no such authority was ever intended.

Finally, the Hay-Bunau-Varilla Treaty of 1903 with Panama cannot be abrogated without violating other existing treaties. The Hay-Pauncefote Treaty of 1901 with Great Britain sets forth the international obligations in connection with the neutral operations of the Canal and the Thompson-Urrutia Treaty of 1914 (approved 1922) gave to Colombia certain privileged rights of use in the Canal Zone. I submit that we cannot unilaterally abrogate these treaties with Great Britain and Colombia.

The 1903 Treaty with Panama was entered into by virtue of the powers granted by Congress (The Spooner Act of 1902). No less than full congressional approval should be required for the annulment of this historic treaty.

DATA IN SUPPORT OF THE CONTENTION OF THE CONTINUING IMPORTANCE OF THE PANAMA CANAL AND CANAL ZONE

Commercially

The Panama Canal is a U.S.-oriented Canal because two-thirds of the vessels transiting have a port in the U.S. as a point of origin or destination.

The Maritime Administration estimates that by the year 2000 U.S. exports through the Canal will have doubled and U.S. exports will be at 21⁄2 times today's levels.

The percentage of the total dollar value of U.S. ocean foreign trade transiting the Panama Canal has steadily increased in the last generation, and is expected to increase in the future.

96 percent of the U.S. fleet and 92 percens of the world's merchant fleet can transit the Canal today. The great majority of those supertankers which cannot transit the Canal were built for trade routes which do not come near the Isthmus of Panama.

70 percent of all the cargo that has transited the Canal has done so in the last 25 years.

Militarily

The lack of a true two-ocean navy while the U.S. has commitments in five oceans makes the Canal's availability for transit ever more important.

98 percent of our naval fleet can transit the Canal. Only our Nimitz class aircraft carriers cannot transit. The trend toward naval ship design is toward a smaller and faster vessel.

The Canal has been a major resource in hostilities and confrontations that occurred in World War II, Korea, the Cuban Missile Crisis, and Vietnam. The Canal Zone has the only major ship repair facilities within 1,600 miles on the Atlantic side and 2,500 miles on the Pacific side.

The Canal Zone also has the only U.S.-controlled air base within 1,000 miles, and it is a military and communications crossroads of the hemisphere.

The only existing trans-Isthmian pipeline for ship bunker oil and aviation fuel are in the zone.

The lack of adequate West Coast port facilities for the loading of supplies and ammunition makes the Canal crucial to U.S. military efforts, especially those in the Pacific theater.

THE LIBRARY OF CONGRESS, CONGRESSIONAL RESEARCH SERVICE, Washington, D.C., December 30, 1971.

To: House Subcommittee on the Panama Canal Attention: Mr. Tannenbaum From: American Law Division

Subject: Cession of United States Property; Treaty or Act of Congress

This is in response to your request for an evaluation of the issue whether property belonging to the United States Government may be ceded by treaty or whether, if provision for cession is made in a treaty, an act of Congress is required to implement the transfer.

Resolution of the issue involves several provisions of the Constitution. In Article IV, sec. 3, cl. 2, it is provided: "The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; . . ." By Article II, sec. 2, cl. 2, the President is authorized to negotiate and enter into treaties, subject to the concurrence of two-thirds of the Senators present, and the supremacy clause, Article VI, cl. 2, makes lawful treaties the law of the land. "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

It may be argued that inasmuch as the Constitution grants the power of making treaties to the President and the Senate in general and unqualified terms and that inasmuch as the making of treaties must extend to all those objects which are the proper subject of negotiation between nations, a treaty ceding territory to a foreign nation would be a self-executing transfer of property needing no further action than that encompassed within the constitutional requirement of ratification. Since the property with which we are here concerned constitutes the territory of the Panama Canal Zone and is very much subject to negotiation between the United States and Panama, it could very well be contended that upon ratification a treaty transferring the territory, or part of it, would become the supreme law of the land, superseding contrary regulations of Congress.

Such a resolution is consistent with a mode of interpretation which leads one to look only to one provision of the Constitution, here, the grant of the treaty power, and to ignore the interrelationship of the clauses of the Constitution in their entirety. The Constitution contains numerous grants of power to the President, to the Congress, to the States, all of which are on their faces unlimited, but all of them are subject to the limitations imposed by other sections of the Constitution. Cf. Williams v. Rhodes, 393 U.S. 23, 29 (1968). Some of these limitations are set out as prohibitions; other limitations are expressed through the vesting of concurrent or exclusive power in certain agencies. There is no doubt that the exercise of the treaty power is limited by both of these constitutional restrictions. Reid v. Covert, 354 U.S. 1, 17 (1957); Asakura v. City of Seattle, 265 U.S. 332, 341 (1934); The Cherokee Tobacco, 11 Wall. (78 U.S.) 616, 620-21 (1871).

A review of the decided cases and the executive-congressional practice since the 1790's, it is submitted, establishes that the treaty power is limited, that among its limitations is that there cannot be effectuated by treaty certain powers which the Constitution grants to the entire Congress to exercise, and that one of these limitations is that the treaty power alone is insufficient to cede or transfer property belonging to the United States to a foreign power.

I

The Constitution, in the supremacy clause, places a congressional act and a treaty on the same footing, of like obligation on the courts and affected parties. "Both are declared . . . to be the supreme law of the land, and no superior efficacy is given to either over the other." Whitney v. Robertson, 124 U.S. 190, 194 (1888). Since a statute and a treaty have the same status under the Constitution, it follows that a treaty could be unconstitutional in the same respect a

statute could be "It need hardly be said that a treaty cannot change the Constitution or be held valid if it be in violation of that instrument. This results from the nature and fundamental principles of our government." The Cherokee Tobacco, 11 Wall. (78 U.S.) 616, 620-21 (1871). A power given by the Constitution cannot be deemed to authorize a contravention of that instrument; it cannot extend "so far as to authorize what the Constitution forbids." Asakura v. City of Seattle, 265 U.S. 332, 341 (1924). "It would be manifestly contrary to the objectives of those who created the Constitution, as well as those who were responsible for the Bill of Rights-let alone alien to our entire constitutional history and tradition-to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions." Reid v. Covert, 354 U.S. 1, 17 (1957) See also, Doe v. Braden, 16 How. (57 U.S.) 635, 656 (1853); Prevest v. Grencaux, 19 How. (60 U.S.) 1, 6 (1856); Geofrey v. Riggs, 133 U.S. 258, 267 (1890); United States v. Wong Kim Ark, 169 U.S. 649, 700 (1898); Wilson v. Girard, 354 U.S. 524, 530 (1957). A passage by Justice Holmes in his opinion for the Court in Missouri v. Holland, 252 U.S. 416, 433 (1920), which had been taken by some to cast doubt on these principles was expressly disavowed in Reid v. Covert, supra, 18.

That the prohibitions of the Constitution restrict the treaty power is clear, Reid v. Covert, supra, 17, but in what other manner is the power limited? That manner too is stated by implication in the language of the Court. Thus, Chief Justice Marshall observed that a treaty must "be regarded in courts of justice as equivalent to an act of the legislature, Whenever it operates of itself without the aid of any legislative provision." Foster v. Neilson, 2 Pet. (27 U.S.) 253, 314 (1829). [Italics supplied, leaving the impression that where it is not self-executing it is not considered similar to a domestic law.] This thought has been reasserted time and time again, especially when the Court has been called upon to determine the applicable law when a statute and a treaty are in conflict. Thus, it is asserted that since both have an equal status, Whitney v. Robertson, 124 U.S. 190, 194 (1888), the one later in time governs. Cf. Cook v. United States, 288 U.S. 102, 118-119 (1933); United States v. Forty-Three Gallons of Whiskey, 93 U.S. 188, 196-97 (1876). A treaty supersedes an earlier statute, however, only if it is self-executing, does not, in other words, require congressional action to implement it. "When the stipulations are not self-executing they can only be enforced pursuant to legislation to carry them into effect, and such legislation is as much subject to modification and repeal by Congress as legislation upon any other subject. If the treaty contains stipulations which are self-executing that is, require no legislation to make them operative, to that extent they have the force and effect of a legislative enactment." Whitney v. Robertson, supra, 194.

II

The Court has never elaborated the standards by which self-executing stipulations are to be distinguished from those which require legislative effectuation. But in Cook v. United States, supra, 119 n. 19, it alluded approvingly to Dickinson, "Are the Liquor Treaties Self-Executing?" 20 American Journal of International Law 444 (1926), in which the author noted that a treaty may not be selfexecuting when it contains an express stipulation for legislative execution or when the nature of the stipulation requires legislative execution. Id., 448-49. See also, S. Crandall, Treaties, Their Making and Enforcement (New York: 1904), 115-50; 1 C. Butler, The Treaty-Making Power of the United States (New York: 1902) ch. 10; H. Tucker, Limitations on the Treaty-Making Power (Boston: 1915), ch. 8. What the nature of a stipulation must be to keep it from being selfexecuting can be determined generally from a consideration primarily of the executive-congressional practice over the years.

In a 1907 memorandum approved by the Secretary of State, it is said in summary of this practice and reasoning from the text of the Constitution, that the limitations on the treaty power, which require legislative implementation, may "be found in the provisions of the Constitution which expressly confide in Congress or in other branches of the Federal Government the exercise of certain of the delegated powers. . . ." Anderson, "The Extent and Limitations of the TreatyMaking Power," 1 American Journal of International Law 636, 641 (1907). Similarly, Judge Cooley wrote: "The full treaty-making power is in the President and the Senate, but the House of Representatives has a restraining power upon

it in that it may in its discretion at any time refuse to give assent to legislation necessary to give a treaty effect." T. Cooley, General Principles of Constitutional Law (New York: 3d ed., 1898), 175. Further discussion and examples cited by Cooley and others make clear that legislation is needed to effectuate a treaty when what is stipulated to be done requires the exercise of a power granted exclusively to the Congress. Ibid; Crandall, op. cit., 132, 145-46.

This issue first became prominent upon ratification of the Jay Treaty in 1796, which, inter alia, contained provisions for the payment of money by the United States. Butler, op. cit., 421–30; Tucker, op. cit., 205–07. In Article I, sec. 9, cl. 7, it is provided that “[n]o money shall be drawn from the Treasury, but in Consequence of Appropriations made by law; . . .” Inasmuch as the supremacy clause made both congressional statutes and treaties "laws" it presumably could have been argued by the President and his associates that upon ratification the treaty became a law and the provision for payment in effect an appropriation. But in fact this argument was not made, the President and Secretary of the Treasury Hamilton contending that since the treaty had been ratified it was incumbent upon the House of Representatives to vote the appropriation. Crandall, op. cit., 119-28. After lengthy debate the House did vote the money but only after attaching a clause which adopted the views of those, like Madison and Gallatin, who argued that when a treaty contained stipulations on any of the subjects committed by the Constitution to Congress the stipulations could not be executed until by independent action Congress had passed implementing legislation. 5 Annals of Congress 771-72, 4th Cong., 1st sess. The practice since with regard to the obligation of funds has been that independent action is necessary, Tucker, op. cit., 205-237, and that in at least one instance, the Mexican Commercial Treaty of 1883, the House declined to appropriate any funds.

Similarly, with regard to treaties which modify and change commercial tariff and other arrangements, the practice has been to submit the changes to Congress for the enactment of legislation making the changes. Cf. sec. 104 of the Revenue Act of 1799, 1 Stat. 701, enacting changes provided for in the Jay Treaty. 1 Stat. 411. A bitter debate in Congress, however, was precipitated by ratification of a treaty with Great Britain in 1815, which provided for reciprocal duties on British vessels and articles and on American vessels and articles. President Madison requested such legislation as would be necessary to carry out the treaty, but the Senate believed that an 1815 statute permitted the President to reduce duties on goods of nations which did not discriminate against United States goods; the House felt that implementing legislation was required. The result was compromise legislation which had the effect of reducing duties while leaving in doubt whether the law did the reducing or merely declared that the reductions had taken place by the treaty. The Senate conferees did, however, stipulate that some treaties made in pursuance of the Constitution might "call for legislative provisions to secure their execution," although they thought Congress bound to provide for the execution. What these types of provisions might be the Senators did not indicate, but the House conferees noted that they believed, and that the Senators seemed to concur, that legislative enactments were necessary to carry into execution all treaties which contained "stipulations requiring appropriations, or which might bind the nation to lay taxes, to raise armies, to support navies, to grant subsidies, to create States, or to cede territory; . ." Crandall, op. cit., 137-39; Annals of Congress 1019, 14th Cong., 1st sess. [underscoring supplied].1

If it be the case, then, that congressional implementing legislation is required when a treaty provision touches upon a subject which the Constitution commits to the exclusive jurisdiction of Congress, it should follow that a treaty stipulation ceding property to another country would require legislative implementation. The Court has indicated that Congress' power under Article IV, sec. 3, cl. 2, is exclusive. Sere v. Pitot, 6 Cr. (10 U.S.) 332 (1910); American Ins. Co. v. Canter, 1 Pet. (26 U.S.) 511 (1828); United States v. Gratiot, 14 Pet. (39 U.S.) 526 (1840); Cross v. Harrison, 16 Har. (57 U.S.) 164 (1853). However, in Holden v. Joy, 17 Wall. (84 U.S.) 211, 247 (1872), the Court said: "It is insisted that the

1 The reference is, of course, only in passing, but much the same language, including the mention of treaties which would "alievate territory," was included in another report in 1868. H. Rept. Nr. 37, 40th Congress, 2d sess., 2 Hinds' Precedents of the House of Representatives (1907), sec. 1508. The matter was directly confronted once in the House on the motion of Henry Clay with regard to a treaty settling certain boundary disputes. Clay introduced a resolution contending that Congress must enact legislation pursuant to its power to dispose of territory; the resolution was debated but never voted on. Id., sec. 1507.

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President and Senate, in concluding such a treaty, could not lawfully covenant that a patent should issue to convey lands which belonged to the United States without the consent of Congress which cannot be admitted. On the contrary, there are many authorities where it is held that a treaty may convey to a grantee a good title to such lands without an act of Congress conferring it, and that Congress has no constitutional power to settle or interfere with rights under treaties, except in cases purely political." Against this language may be imposed two objections. The language was not necessary to the decision since the Court in fact found a congressional act in effect recognizing the validity of the particular cession and none of the authorities cited is precisely on point.

There seems little doubt that examples may be found in which the United States had disposed of property by treaty without an authorizing act of Congress. That such actions may have taken place in the past is, of course, no warrant for following an incorrect practice in future cases, if in fact the conclusion reached here is the correct practice. In any event, some examples are explainable as the settlement of disputed international boundary claims by treaty, involving some compromise and some loss of claimed property, but since only a claim was at issue and not territory actually owned, these have only a limited relevance if any at all. Other examples are of dubious validity and often in fact support the contrary of that for which they are cited. Indicative of this type of example is the WebsterAshburn Treaty of 1842, by which the United States agreed to cede certain property in Maine and Massachusetts to Great Britain. The property did not belong to the United States but rather to those States and the treaty was conditioned upon the assent of those States and the payment of compensation to them. Congress in 1843 did appropriate funds which were paid. Congress did not actually authorize the transfer, inasmuch as there was no necessity of an authorization. It had not bought the property for the United States Government; it had rather compensated the States for the loss occasioned when the States consented pursuant to the treaty.

Again, the 1963 Chamizal Treaty is often cited as an example of cession of territory by treaty. The land ceded belonged to private persons, not the United States, and the treaty itself recognized that some legislative action might be required to complete the transfer. The legislation authorized the acquisition of the property "for transfer to Mexico as provided in said convention . . .," about as clear an authorization for both acquisition and transfer as one could hope for. Public Law 88-300, 78 Stat. 184, § 1.

The issue discussed herein has never been definitively resolved either by judicial decision or by a course of consistent practice, although with regard to the latter the House has generally over the years continuously insisted on its right to be consulted and to legislate to implement a treaty which calls for the doing of something committed by the Constitution to Congress. Therefore, it is arguable that conclusions on this matter must be based on logical analysis and extrapolation rather than on principle derived from precedent. The conclusion reached here, that conveyance of the Panama canal property to Panama by treaty would not be effectual without implementing legislation, is based on the interpretation set for above. These in summary are: (1) that the Constitution has vested powers in separate organs of the Federal Government which cannot be exercised by other organs; (2) that the treaty power is as subject to this vesting as is any other power granted; (3) that a treaty provision properly taking account of matters within the confines of the treaty power may provide for the doing of certain things although the power to do those things is vested elsewhere in the Federal Government, but, that when it does, this provision remains unexecuted until the body vested with the power acts; (4) that the Constitution vests Congress with power to dispose of property belonging to the United States; and (5) that while a treaty may properly provide for the conveyance of such property an act of Congress is required to execute this provision. To conclude otherwise, it is believed, would place certain provisions of the Constitution above others and would raise difficult problems reconciling prior determinations with regard to treaties dealing with other subjects as to which the power to act is vested in Congress, such as tariff laws and appropriations. JOHNNY H. KILLIAN, Legislative Attorney.